In Florida (with 4 electoral votes), Louisiana (with 8 ) and South Carolina (with 7), reported returns favored Tilden, but the elections in each state were marked by electoral fraud and threats of violence against Republican voters; the most extreme case was in South Carolina, where an impossible 101 percent of all eligible voters in the state had their votes counted.[16] One of the points of contention revolved around the design of ballots: at the time, parties would print ballots or "tickets" to enable voters to support them in the open ballots. To aid illiterate voters the parties would print symbols on the tickets, and in this election, many Democratic ballots were printed with the Republican symbol, Abraham Lincoln, on them.[17] The Republican-dominated state electoral commissions subsequently rejected enough Democratic votes to award their electoral votes to Hayes.
In two southern states, the governor recognized by the United States had signed the Republican certificates: the Democratic certificates from Florida were signed by the state attorney-general and the newly elected Democratic governor, those from Louisiana were signed by the Democratic gubernatorial candidate, and those from South Carolina by no state official, with the Tilden electors claiming that they were chosen by the popular vote and were rejected by the state election board.[18]
Meanwhile, in Oregon, the vote of a single elector was disputed: the statewide result clearly favored Hayes, but the state's Democratic governor, La Fayette Grover, claimed that one of the GOP electors, former postmaster John Watts, was ineligible under Article II, Section 1, of the United States Constitution, since he was a "person holding an office of trust or profit under the United States," and substituted a Democratic elector in his place.
The two Republican electors dismissed Grover's action and each reported three votes for Hayes, while the Democratic elector, C. A. Cronin, reported one vote for Tilden and two votes for Hayes. The two Republican electors presented a certificate signed by the secretary of state of Oregon, while Cronin and the two electors he appointed (Cronin voted for Tilden while his associates voted for Hayes) presented a certificate signed by the governor and attested by the secretary of state.[18]
Ultimately, all three of Oregon's votes were awarded to Hayes, who had a majority of one in the Electoral College. The Democrats claimed fraud, while suppressed excitement pervaded the country. Threats were even muttered that Hayes would never be inaugurated: in Columbus, Ohio, a shot was fired at Governor Hayes' residence as he sat down to dinner. After supporters marched to his home, calling for the president, Hayes urged the crowd that, "it is impossible, at so early a time, to obtain the result."[19] President Grant quietly strengthened the military force in and around Washington.[18]
The Constitution provides that "the President of the Senate shall, in presence of the Senate and House of Representatives, open all the [electoral] certificates, and the votes shall then be counted." Certain Republicans held that the power to count the votes lay with the President of the Senate, the House and Senate being mere spectators; the Democrats objected to this construction, since the Republican President of the Senate, Thomas W. Ferry, could then count the votes of the disputed states for Hayes.
The Democrats insisted that Congress should continue the practice followed since 1865, which was that no vote objected to should be counted except by the concurrence of both houses, however the House had a solid Democratic majority; by rejecting the vote of one state, it would elect Tilden.[18]
Facing an unprecedented constitutional crisis, the Congress of the United States passed a law on January 29, 1877 that formed a 15-member Electoral Commission to settle the result. Five members were selected from each house of Congress, and they were joined by five members of the Supreme Court, with William M. Evarts serving as counsel for the Republican Party. The Compromise of 1877 might have helped the Democrats accept this electoral commission as well.
The majority party in each house named three members and the minority party two. As the Republicans controlled the Senate and the Democrats the House of Representatives, this yielded five Democratic and five Republican members of the Commission. Of the Supreme Court justices, two Republicans and two Democrats were chosen, with the fifth to be selected by these four.
The justices first selected a political independent, Justice David Davis. According to one historian, "[n]o one, perhaps not even Davis himself, knew which presidential candidate he preferred."[19] Just as the Electoral Commission Bill was passing Congress, the legislature of Illinois elected Davis to the Senate, and Democrats in the Illinois legislature believed that they had purchased Davis' support by voting for him. However, they had miscalculated, as Davis promptly excused himself from the Commission and resigned as a Justice in order to take his Senate seat.[20] As all the remaining available justices were Republicans, the four justices already selected chose Justice Joseph P. Bradley, who was considered the most impartial remaining member of the court. This selection proved decisive.
Since it was drawing perilously near to Inauguration Day, the commission met on January 31. The cases of Florida, Louisiana, Oregon, and South Carolina were in succession submitted to it by Congress. Eminent counsel appeared for each side, and there were double sets of returns from every one of the states named.[18]
The commission first decided not to question any returns that were prima facie lawful.[18] Bradley then joined the other seven Republican committee members in a series of 8–7 votes that gave all 20 disputed electoral votes to Hayes, giving Hayes a 185–184 electoral vote victory; the commission adjourned on March 2. Hayes privately took the oath of office the next day and was publicly sworn into office on March 5, 1877, and Hayes was inaugurated without disturbance.[18]
During intense closed-door meetings, Democratic leaders agreed reluctantly to accept Hayes as president in return for the withdrawal of federal troops from the last two still-occupied Southern states, South Carolina and Louisiana. Republican leaders in return agreed on a number of handouts and entitlements, including Federal subsidies for a transcontinental railroad line through the South. Although some of these promises were not kept, in particular the railroad proposal, it was enough for the time being to avert a dangerous standoff.
The returns accepted by the Commission put Hayes' margin of victory in South Carolina at 889 votes, the second-closest popular vote margin in a decisive state in U.S. history, after the election of 2000, which was decided by 537 votes in Florida: in 2000, the declared margin of victory in the Electoral College for George W. Bush was five votes, as opposed to Hayes' one vote.
Though it is not possible to conclude definitively what the result would have been if a fair election had been held without the violence and intimidation throughout the South that disenfranchised many African Americans made eligible to vote under the 15th Amendment,[21] in the likeliest fair scenario, Hayes would have won the election (with 189 electoral votes to Tilden's 180) by winning all of the states that he did ultimately carry, plus Mississippi, but minus Florida.[21] In a truly fair election, it seems probable that South Carolina, Mississippi, and Louisiana, which all had majority-black populations, would have gone Republican, while Florida, with a majority white population, would have likely gone to Tilden.[21] It is therefore likely that Hayes would have won appreciably more of the popular vote in a fair election, perhaps even a plurality or majority.[21]
Upon his defeat, Tilden said, "I can retire to public life with the consciousness that I shall receive from posterity the credit of having been elected to the highest position in the gift of the people, without any of the cares and responsibilities of the office."
Congress would eventually enact the Electoral Count Act in 1887 to provide more detailed rules for the counting of electoral votes, especially in cases where multiple slates of electors have been received from a single state.